Proposition 8: federal judge overturns California gay marriage ban

Proposition 8, the 2008 California ban on gay marriage, is unconstitutional, a federal judge ruled Wednesday. Supporters of Proposition 8 say they will appeal the decision.

Eric Risberg/AP

Molly McKay of Marriage Equality USA (c.) reads the decision in the United States District Court proceedings challenging Proposition 8 outside of the Phillip Burton Federal Building in San Francisco, on Aug. 4.

The ruling, which will certainly be appealed, follows a closely watched trial on the constitutionality of the state's prohibition of same-sex marriage that many expect will eventually be decided in the US Supreme Court. A decision there would result in a landmark ruling on one of the most contentious social issues of our time.

Lawyers who defended Proposition 8 have already filed a request with the court to keep the state's gay marriage ban in place until an appeal can be heard.

The case challenging the proposition, Perry v. Schwarzenegger, was brought by two unmarried gay couples who argued the ban violated their right to due process under the law and the Constitution’s equal protection clause.

"The evidence shows that Prop. 8 does nothing more than enshrine in the California constitution, the notion that opposite sex couples are superior to same sex couples,” Judge Walker wrote in his 130-page decision. “Because California has no interest in discriminating against gay men and lesbians and because Prop. 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes the Prop. 8 is unconstitutional.”

"This decision affirms that in America, we don't treat people differently because of their sexual orientation," said Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, in a statement. "We rejoice at today's decision but there's a long road ahead toward establishing true marriage equality for same-sex couples."

But opponents of same-sex marriage hold the opposite view.

“We will certainly appeal this disappointing decision,” said Alliance Defense Fund Senior Counsel Brian Raum, who represents the official proponents of Proposition 8, in a statement. “Its impact could be devastating to marriage and the democratic process."

“The majority of California voters simply wished to preserve the historic definition of marriage. The other side’s attack upon their good will and motives is lamentable and preposterous,” Mr. Raum said. “Imagine what would happen if every state constitutional amendment could be eliminated by small groups of wealthy activists who malign the intent of the people. It would no longer be America, but a tyranny of elitists.”

Legal experts say Wednesday's decision is significant because it is the first time a federal court has passed judgment on the issue of same-sex marriage. State courts in such places as Massachusetts, California, and New York have come down on both sides of the issue.

“This is quite historic because it has been felt that the proponents of gay marriage had been avoiding federal courts under the premise that a ruling there would be more final than in state court,” says Herma Hill Kay, professor of law at University of California's Berkeley School of Law.

Professor Kay says Judge Walker’s opinion is “particularly strong” and his analysis of the US Constitution’s equal protection clause is “quite compelling.”

Still, legal analysts see a lengthy legal path ahead before the case is settled for good – most likely in the US Supreme Court.

“While this is a big victory for opponents of Proposition 8, it is hardly the final word on whether banning gay marriage is constitutional,” says Jessica Levinson, adjunct professor of law at Loyola Law School in Los Angeles.

“It will likely be two to three years before the United States Supreme Court determines whether marriage is a fundamental right such that no one, regardless of their sexual orientation, can be denied that right," she says.

Because of the uncertainty hanging over the legal fate of Proposition 8, gay marriage supporters say they are not turning away from trying to overturn the measure at the ballot box in 2012.

“This is an awkward position in that we all expect the courts to protect minority groups and generally they do a pretty good job,” says Tom Watson, current board chair of Love, Honor, Cherish, a group formed in May 2008 dedicated solely to the repeal of Prop 8. “But in this case, that outcome is not assured in the US Supreme Court so we are going to work against being over confident.”

A California Field Poll released July 20 shows California voters support legalizing same-sex marriage 51-42 percent. And a Public Policy Institute of California (PPIC) poll shows support for gay marriages rose from 44 percent to 50 percent over the past 15 months.